ICE Issues New Policy on Detention of Pregnant, Postpartum, and Nursing Individuals

Immigration and Customs Enforcement (ICE) issued a new policy directive regarding the identification, detention, monitoring, and use of restraints against persons who are pregnant, postpartum, or nursing. Generally, the directive notes that ICE should not detain, arrest, or take into custody individuals who are pregnant, postpartum, or nursing for administrative immigration violations “unless release is prohibited by law or exceptional circumstances exist.” The policy does not address initiation of removal proceedings.

In circumstances where detention of individuals who are pregnant, postpartum, or nursing is necessary, the policy notes that ICE must monitor the individuals for general health and well-being to ensure access to medical and mental health care. These individuals must also be housed in facilities suitable for providing access to medical care.

The policy requires all ICE law enforcement personnel to notify their Enforcement and Removal Operations (ERO) Field Office Directors (FODs) or Homeland Security Investigations (HSI) Special Agents in Charge (SACs) before issuing a detainer or arresting an individual known to be pregnant, postpartum, or nursing. The policy also provides guidance on using all available and credible information to determine if an individual is pregnant, postpartum, or nursing.

If an individual is discovered to be pregnant, postpartum, or nursing while already in detention, ICE personnel are instructed to notify the chain of command and the appropriate medical staff to determine if continued detention is appropriate.

ICE Health Service Corps (IHSC) is required, under the policy, to maintain information regarding individuals known to be pregnant, postpartum, or nursing in ICE custody. IHSC is required to provide ongoing monitoring, tracking, and communication with field offices concerning the medical condition of these individuals and report data on these individuals monthly to the to the Executive Associate Director (EAD) for ERO, who will report it to the Office of the Director (through the Office of the Deputy Director).

In terms of restraints, a general prohibition of their use applies to all pregnant individuals in ICE custody whether during transport, in a detention facility, or at an outside medical facility except in three extraordinary circumstances, which are:

a)       A medical officer has directed the use of restraints for medical reasons;

b)      Credible, reasonable grounds exist to believe the individual presents an immediate and serious threat of hurting themselves, staff, or others; or

c)       Reasonable grounds exist to believe the individual presents an immediate and credible risk of escape that cannot be reasonably minimized through any other method.

Restraints are never permitted on individuals who are in active labor or delivery. The policy also clarifies that medical staff must be the ones to determine the safest method and duration for use of restraints and the least restrictive restraints necessary must be used. In the event restraints are deemed necessary, the policy sets restrictions on the manner which those restraints can be used – for example, no individual known to be pregnant may be restrained in a face-down position with four-point restraints. When restrains are used, they require documented approval and guidance from a medical authority which is kept in the individual’s A-file and noted in the system of record.

The policy further outlines the responsibilities of each actor listed in the policy.

“ICE is committed to safeguarding the integrity of our immigration system and preserving the health and safety of pregnant, postpartum and nursing individuals,” Acting ICE Director Tae D. Johnson said in a statement announcing the policy. “Given the unique needs of this population, we will not detain individuals known to be pregnant, postpartum or nursing unless release is prohibited by law or exceptional circumstances exist. This reflects our commitment to treat all individuals with respect and dignity while still enforcing our nation’s laws.”